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Ordinance 94-2950 ORDINANCE NO. 94-2950 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING COMPREHENSIVE ZONING ORDINANCE NO. 89-2665, AMENDING SECTION 18, ENTITLED "DESIGN REVIEW BOARD" , AMENDING SUBSECTION 18-2, ENTITLED "DESIGN REVIEW PROCEDURES" BY REQUIRING THAT THE DESIGN REVIEW BOARD HOLD A PUBLIC HEARING FOR EACH PROJECT UNDER REVIEW, WITH NOTICE OF THE HEARING POSTED ON THE PROPERTY AND PUBLISHED IN A NEWSPAPER OF GENERAL CIRCULATION IN THE MUNICIPALITY AND MAILED TO OWNERS OF PROPERTY WITHIN 375 FEET OF THE PROPERTY; PROVIDING FOR COURTESY NOTICES TO NONPROFIT FLORIDA COMMUNITY ORGANIZATIONS REQUESTING SUCH NOTICES IN WRITING; ALLOWING FOR THE PRESENTATION OF OPINIONS, EVIDENCE AND REBUTTAL EVIDENCE; PROVIDING THAT THE BOARD' S DECISION SHALL BE SET FORTH IN A WRITTEN ORDER; PROVIDING FOR REHEARINGS BEFORE THE DESIGN REVIEW BOARD AND EXTENDING THE TIME FOR FILING APPEALS UNTIL TWENTY (20) DAYS AFTER THE CONCLUSION OF ANY SUCH REHEARINGS; PROVIDING THAT THE APPLICANT, CITY ADMINISTRATION, AN AFFECTED PARTY OR IN THE CASE OF HISTORICALLY SIGNIFICANT BUILDINGS, MIAMI DESIGN PRESERVATION LEAGUE AND DADE HERITAGE TRUST MAY SEEK REHEARING OR REVIEW OF A DECISION OF THE DESIGN REVIEW BOARD; PROVIDING THAT IN ORDER TO REVERSE OR REMAND A DECISION OF THE DESIGN REVIEW BOARD THE CITY COMMISSION SHALL FIND THAT THE BOARD DID NOT PROVIDE PROCEDURAL DUE PROCESS, OBSERVE ESSENTIAL REQUIREMENTS OF LAW, OR BASE ITS DECISION UPON SUBSTANTIAL COMPETENT EVIDENCE; PROVIDING FOR REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the Mayor and City Commission believe that property owners and other citizens should have notice and an opportunity to be heard when projects are reviewed by the City' s Design Review Board; and WHEREAS, pursuant to Subsection 18-2 of the City' s Zoning Ordinance, decisions of the City' s Design Review Board may be appealed to the City Commission by the City Manager or the applicant for Design Review Approval; and WHEREAS, the Mayor and City Commission believe that parties affected by a decision of the City' s Design Review Board should have an opportunity to have that decision reviewed; and } WHEREAS, it is necessary to update the standard used to review decisions of the Design Review Board in keeping with current case law; and WHEREAS, in order to eliminate the need for resetting scheduled review of Design Review Board decisions, it is necessary to extend the time for filing requests for review until after the conclusion of rehearings before the Design Review Board. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1 . AMENDMENT OF SUBSECTION 18-2 . That Subsection 18-2 of City of Miami Beach Comprehensive Zoning Ordinance No. 89-2665 is hereby amended as follows : 18-2 DESIGN REVIEW PROCEDURES D. Decision of Board The Design Review Board shall consider each application at a public hearing, at which citizens shall have an opportunity to express their opinions, present evidence and rebut all evidence presented. The Historic Preservation and Urban Design Department shall provide the Applicant with advance notice of the hearing date and time, including a copy of the agenda and the recommendation of the Department . Not less than fifteen (15) days prior to the public hearing date, a description of the request, and the time and place of such hearing shall be posted on the property on a sign of no less than 11" x 17" , and advertised in a paper of general paid 2 I circulation in the municipality; notice shall also be given by mail to the owners of record of land lying within 375 feet of property. Additionally, courtesy notice (s) shall also be given to any State of Florida nonprofit community organization which has requested of the Director in writing to be notified of Board hearings . The Board shall approve, approve with conditions or deny applications . The Board may require such changes in said plans and specifications as in its judgment may be requisite and appropriate to the maintenance of a high standard of architecture, as established by the standards contained in this Ordinance and as specified in the City' s Comprehensive Plan and other specific plans adopted by the City of Miami Beach pertaining to the areas identified in Section 18-2 , B . 1 . Upon approval of an application by the Board, the Historic Preservation and Urban Design Director of his authorized representative shall stamp and Sign three (3) sets of plans . Two (2) sets of plans shall be returned to the Applicant who may then submit an application for a Building Permit . The remaining approved plans shall be part of the Board' s official record and shall be maintained on file with the Historic Preservation and Urban Design Department . The Board' s decision shall be set forth in a written order, specifying the reasons for such decision. The Historic Preservation and Urban Design Department shall i33uc a lcttcr informing thc Applicant of thc Board' s dcci3ion. If approval is dcnicd, the lcttcr Shall cpccify thc rcaoonc for dcnial . promptly mail a copy of the Board' s Order to the Applicant . 3 b The provisions of Subparagraph D shall also apply to the review of projects by the Design Review Board/Historic Preservation Board pursuant to Subsection 19-7 . I . Rehearings. The Design Review Board may hear a Petition for Rehearing by any person identified in paragraph J below. The Board may rehear a case, take additional testimony and either reaffirm their previous decision or issue a new decision reversing or modifying their previous decision. The Petition for Rehearing must demonstrate to the Board that (1) there is newly discovered evidence which will probably change the result if a rehearing is granted, or (2) the Board has over-looked or failed to consider something which renders the decision issued erroneous . A Petition for Rehearing must be filed within fifteen (15) days of the filing of the last written order issued in the case . An order will issue on any petition for rehearing. * * * J. Appcal Review of Design Review Decisions 1 . The Applicants or the City Manager on behalf of the City Administration; or an affected person or, in the case of Historically Significant Buildings, Miami Design Preservation League and Dade Heritage Trust may seek review of appeal any dccicion order of the Design Review Board by the City Commission, except that orders granting or denying a request for rehearing shall not be reviewed 4 1u` riff"' by the Commission. For purposes of this Section, "affected person" shall include but shall not be limited to a person owning property within 375 feet of the Applicant' s project reviewed by the Board. The review shall be based on the record of the hearing before the Design Review Board, shall not be a de novo hearing, and no new, additional testimony shall be taken. The request appcal shall be in writing and submitted to the Historic Preservation and Urban Design Director within twenty (20) days of the date on which the Board reached a decision on an application. However, in the event that a Petition for Rehearing is filed pursuant to subparagraph I above, the time for filing a request shall be twenty (20) days from the date of the Board' s ruling on the Petition or from any rehearing which may be held. Within thirty (30) days of receipt of the request, the Historic Preservation and Urban Design Director shall place the appeal request for review on the City Commission agenda. The City Commission shall set a date and time for a hearing. The hearing shall be set for a date which is within thirty (30) forty-five (45) days of receipt of the app al request for review by the Director. Notice of the review shall be according to subparagraph D herein. 2 . In order to reverse, or remand for amendment , modification or rehearing amend, or modify any decision of the Design Review Board, the City Commission shall find that the Design Review Board acted arbitrarily and 5 capriciously in abu3c of its discretionary powers . did not do one of the following: a . provide procedural due process, b. observe essential requirements of law, or c . base its decision upon substantial competent evidence . In order to reverse, or remand amend or modify a 5/7th vote of the City Commission is required. The City Commission' s decision shall be set forth in a written Order which shall be promptly mailed to all parties to the review. 3 . Appeal from a decision of the City Commission shall be to a court of competent jurisdiction by petition for writ of certiorari in accordance with the Florida Rules of Appellate Procedure . SECTION 2 . REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3 . SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. 6 SECTION 4 . EFFECTIVE DATE. This Ordinance shall take effect on the 29th day of October , 1994 , and the proceedings established herein, shall apply to all hearings conducted by the Design Review Board concerning any matter held on or after December 1, 1994 . However, the provision of Subparagraph 18-2J pertaining to standing to appeal orders of the Board to the City Commission shall apply to all projects for which an application for Design Review is submitted after the effective date of this Ordinance . PASSED and ADOPTED this 19th day of / October , 1994 . ATTEST: �..? MAY CITY CLERK 1st reading 10/5/94 2nd reading 10/19/94 SWS:scf:disk7\drb18-2G.ord FORM APPROVED LEGAL DEPT. By J1.� Date 6-11)5 /o-ZI ?y 7 CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 Q � . COMMISSION MEMORANDUM NO. —72I— "dye TO: Mayor Seymour Gelber and DATE: Members of the City Commission October 19, 1994 FROM: Roger M. Ca Ito /116ki ::::7 City Manager SUBJECT: SECOND READING - AMENDMENT TO ZONING ORDINANCE NO. 89- 2665 REVISING PROCEDURES FOR DESIGN REVIEW BOARD HEARINGS AND FOR REHEARINGS AND APPEALS OF DESIGN REVIEW BOARD DECISIONS. RECOMMENDATION The City Administration recommends adopting on second reading the attached ordinance amending Miami Beach Zoning Ordinance No. 89- 2665 with revised wording under Subsections 18-2 I. and 18-2 I. 1 (as described under the conclusion herein) . This Ordinance was adopted on first reading, addressing many of the concerns raised by the South Pointe Citizen Coalition. BACKGROUND On April 20, 1994, the City Commission passed a resolution referring the original amendment to the City's Planning Board pertaining to changing procedures for hearing appeals of Design Review Board cases that permitted aggrieved parties to appeal the Board's decisions and provided for a Special Master to hear such appeals. Currently, Subsection 18-2 of the Zoning Ordinance only allows for appeals of Design Review Board decisions by the applicant or the City Manager and provides for such appeals to be heard by the City Commission. On July 26, 1994 , the Planning Board held a public hearing on the proposed amendment and recommended a preferred alternate ordinance (Planning Board Preferred Ordinance "B") which would permit appeals of Design Review decisions to a Court of Competent Jurisdiction, in addition to a third alternate ordinance (Planning Board Alternate Ordinance "C") which would permit appeals to a Special Master, three-member panel. The Board voted 5-0 for their Preferred Alternate Ordinance "B" and 4-1 for their Alternate Ordinance "C" . 1:19 - 1 - AGENDA ITEM DATE 16- tgf"1 T On September 22, 1994 , the City Commission heard this matter and continued it in order that Administration and City Attorney representatives could meet with representatives of the South Pointe Citizens Coalition to review additional changes. Some of these changes were incorporated into the Ordinance ANALYSIS OF REVISED ORDINANCE The proposed Ordinance, as revised, would amend Section 18, entitled "Design Review Board", by amending Subsection 18-2 , entitled "Design Review Procedures" by doing the following: On October 5, 1994, the Commission adopted, on first reading, the attached Ordinance. Important changes made were: the appeal of a Design Review Board decision would continue to be to the City Commission, not a Special Master; the Miami Design Preservation League (MDPL) and Dade Heritage Trust (DHT) would have standing to appeal decisions affecting "historically significant" properties (properties on the database which are not designated historic sites or within designated districts) ; and the removal of an appeal of a decision by the Design Review Board to rehear or not rehear a case. Additional changes include: (1) - structuring the Design Review Board process as a public hearing at which citizens would have expanded opportunity to express their opinions, present evidence and rebut all evidence presented; (2) - requiring posting at the subject site, that fully describes the proposed project for hearing, notice of public hearing advertised in a paper of general paid circulation in the City, a mailed notice to owners of property within 375 feet for each project under review; and a courtesy notice to not-for-profit organizations in the State of Florida which request in writing to be so noticed; MDPL and Dade Heritage Trust would have standing on projects involving historically significant properties; (3) - providing that the Board's decisions would be set forth in a written order and an affected party (owner of property within 375 of the subject site) in addition to the applicant and the City Manager may appeal a decision of the Design Review Board; (4) - providing for rehearings before the Design Review Board and extending the time for filing appeals until twenty (20) days after the conclusion of any such rehearings; a decision by the Design Review Board to rehear or not rehear a case would not be appealable; - 2 - 140 (5) - that appeals of Design Review Board decisions shall continue to be decided by the City Commission; (6) - in order to reverse, amend or modify a decision of the Design Review Board the City Commission shall find that the Board did not provide procedural due process, observe essential requirements of law, or base its decision upon substantial competent evidence; (7) - clarifies the time frame for appellate procedure by stating the appeal shall be in accordance with the Florida Rules of Appellate Procedure. CONCLUSION The Administration, recommends that the City Commission adopt this Ordinance on second reading with the following changes: a. The third sentence of Subsection 18-2 I. should be revised to read as follows: The Petition for Rehearing must demonstrate to the Board that (1) , there is newly discovered evidence after the hearing which had it been available during the hearing might have had a fundamental impact on the outcome of said hearing; or (2) , the Board has overlooked or failed to consider something which renders the decision erroneous. b. The second sentence of Subsection 18-2 J. 1 should be revised to read as follows: For purposes of this Section, "affected person" shall include persons owning property within 375 feet of the Applicant's project reviewed by the Board. 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